The importance of client participation in Court of Protection hearings
The importance of client participation in Court of Protection hearings is illustrated in the case of Mr. B v A Local Authority (COP1381929T).
This moving case concerned a husband and wife of many years who resided together in a care home. Mr. B had a diagnosis of late onset Alzheimer’s disease and Mrs. B had advanced dementia.
Both Mr. and Mrs. B were both subject to the Deprivation of Liberty safeguards (“DoLS”), which are attached to the Mental Capacity Act 2005 (“MCA 2005”). The DoLS can be used to detain an individual in a care home on the basis that they lack capacity to make decisions about where they live, and it’s in their best interests for them to be detained.
Both Mr. B and Mrs. B strongly wished to return to their marital home and objected to living at the care home. As a result, challenges were brought to the Court of Protection pursuant to Section 21A of the MCA 2005.
Whilst the two cases were separate challenges, they ran parallel to each other and were heard together. Interestingly, this mirrored the overarching theme of the case; the importance of Mr. and Mrs. B remaining together, despite their differing care needs. We represented Mr. B in his proceedings and therefore, can only relay this case from his point of view.
The case particularly highlighted the importance of the protected party (usually referred to as “P”) – in this case Mr. B – being involved in proceedings as much as possible.
The married couple first came to the attention of social services in July 2018. Following a fall at home, Mrs B was admitted to hospital with a fractured elbow. Mr. B informed the hospital that they were “both alcoholics”. Over the next two years, the situation at home became increasingly horrific. The timeline of events was:
April 2019: a social worker visited the couple and identified that there were faeces smeared on the sofa cushions and blood-stained tissues on the table.
September 2020: Mr. and Mrs. B were both admitted to hospital, after being discovered at home, naked, unconscious, and covered in excrement. Mr. B had an open wound to his groin area, which was infected by maggots.
Whilst in hospital, Mr. B fell and fractured his hip. He suffered from delirium and was deemed unable to understand the relevant information to make decisions concerning his residence and care. It was considered that respite care at a residential placement was in his best interests.
November 2020: Mr. B. was discharged from hospital to the nursing unit at his current placement.
December 2020 and February 2021: Mr. B was assessed as having capacity to make decisions relating to his residence and care. As a result, he could have gone home. However, he chose to remain in the care home to be with his wife.
December 2021: Sadly, due to his diagnosis, Mr. B’s mental health deteriorated over time. He too was deemed unable to make the relevant decisions for himself and placed under the DoLS.
Mr. B’s Dilemma
The couple’s care needs differed greatly. Unfortunately, Mrs. B’s dementia was very advanced and therefore, it was necessary that she remained in a 24-hour care setting. In contrast, Mr. B’s care needs were at such a level whereby he could likely reside at home with a package of care.
This was not a consideration for Mr. B under any circumstances. Despite his clear and consistent wish to return home, he would not consider going without his wife. His main wish was to be with her. This was arguably the most striking element of the case; such was Mr. B’s love for his wife, he was willing to give up some of the freedoms he may have enjoyed at home, to be with her.
There was now no dispute that Mr. B lacked the mental capacity to decide where to live and about his care arrangements. Additionally, it had already been decided in Mrs. B’s case that she was to remain at the care home. Therefore, the focus of His Honour’s decision was: where was it in Mr. B’s best interests to reside?
The Judge ruled that it was in Mr. B’s best interests to continue to reside at the current placement with Mrs. B. The judge’s reasoning was summarised as follows: –
- If he were left to go home, this would likely result in a serious degree of self-neglect, combined with a refusal to allow carers to come in and assist
- Mr. and Mrs. B’s previous living circumstances were seriously damaging to themselves, but also potentially life threatening. The likelihood of this recurring was still strong
- The judge recognised Mr. B’s overriding wish to remain with Mrs. B. He stated that, given she was remaining at the placement, it was unlikely that Mr. B would want to return home alone
Participation of P
During the case, we made four visits to Mr. B, in addition, there were six Round Table Meetings, an in-person judicial visit and five court hearings.
Mr. B had always shown an interest in attending meetings and hearings. He stated that he wished to be involved as much as possible. Enquiries and arrangements were always made to enable Mr. B to attend remotely if he wished. However, when it came to the day of the hearing or the meeting, he would often to have a change of heart and decide he didn’t want to be involved.
Both Mr. B and Mrs. B had expressed a wish to speak to the Judge who would be making the decisions in their respective cases. For that reason, all involved agreed that no final determination could be made until the couple had met with the Judge.
The Judge visited the care home at the beginning of July 2023. Mr. B’s representation were present, together with a representative from Mrs. B’s solicitors to support our respective clients and to take a note for the court.
The Judge, Mr. B and Mrs. B spoke at some length. The visit provided the opportunity for the Judge to get to know the couple, beyond what was in the papers. The couple spoke of how they met, how they used to go dancing and about their time abroad, where they had settled for some years due to Mr. B’s work as an engineer. The couple also told the Judge how they had married there and had celebrations in the garden of the British Embassy.
The visit also provided the couple with the chance to express their strong desire to return home together. Whilst the Judge knew this already, it was important for Mr. and Mrs. B to know that their voices were heard by the person who would ultimately be making the final decision.
The final hearing (Part 1 of 2)
The final hearing was to follow this visit and take place in July 2023. Mr. B had expressed a wish to join the hearing to hear the Judge’s decision.
The hearing was held remotely via video link. Arrangements had been made for Mr. B to join remotely with the assistance of the placement staff. Unlike on other occasions, he attended for the hearing. Unfortunately, disaster struck when the Judge was unable to hear Mr. B due to tech issues .
The Judge postponed the hearing for five minutes whilst we called the care home to notify them of the issue and try to work out a solution. A staff member entered the room to alert Mr. B to the issue, asking them to move rooms. This was met by Mr. B with: “Forget it!” He stood up and walked out of the staff office, returning to his bedroom.
Counsel for Mr. B proposed three options to the Judge:
- To proceed in the absence of Mr. B
- To proceed later the same afternoon, giving Mr. B the opportunity to settle and to see whether he would join again later on; or
- An in-person hearing to be arranged
The Judge stated that it was: “unfair to proceed with Mr. B’s absence” and that an “in-person hearing is not an option. He hasn’t left the care home for three years”.
The second option was preferred by the Judge. Despite this, Mr. B was refusing staff entry into his bedroom and did not want to engage whatsoever.
When the hearing reconvened later that afternoon, the Judge concluded:
“I am decided it’s right to adjourn. The sole ground is that we need to hear the wishes and feelings of Mr B. Given that he attempted to have his say today, we have got to give him one more roll of the dice. It is probably best that his representation is actually there as well; it can perhaps coincide with his counsel visiting with the hearing to follow. Counsel may help Mr. B to take part or he may wish to take part himself”. That was a reference to me.
The final hearing (Part 2 of 2)
On the day of the hearing, we travelled to Mr. B’s placement ahead of time explained the difficulties we had on the previous occasion. It was explained that our role was there to ensure that it didn’t happen again so Mr. B could join the hearing and hear the Judge’s decision. The hearing then proceeded. By having counsel in the room Mr. B was able to see and have explained to him who everybody was on the screen.
Mr. B’s barrister and the local authority gave their submissions before the Judge turned to Mr. B and asked if he wished to say anything. The Judge gave Mr. B this opportunity twice throughout the hearing. Each time, we asked permission to speak with Mr. B first for a moment. The Judge kindly allowed us five minutes to confer off camera. During these moments, we would briefly recap and summarise what people had said and would ask Mr. B if he would like to respond. He would respond on a couple of points but only to us off camera. He did not wish to expressly repeat them to the Judge and so asked us to relay what he had said, which we were happy to do.
The Judge gave his judgment (see decision above) and before ending the hearing, he gave Mr. B one final opportunity to have his say:
“I am sorry to Mr. B that the decision is not the one he wants but I am afraid the evidence in that direction is overwhelming. Is there anything Mr. B would like to say in response?”
Mr. B did not hesitate to respond this time:
“I think they have taken the completely wrong decision and not looked at both of our requirements. To be together is the best thing for us. That is mind-boggling; out of this world!”
The Judge left the hearing with the following:
“I wish Mr. B and Mrs. B the very best for the future. It may be that, in time, I will meet Mr. B again in a different context”.
The hearing was ended and we stayed with Mr. B for a short while afterwards. He was clearly unhappy with the Judge’s decision. Mr. B’s rhetoric made this clear, using terms such as “committed to a jail legally”, “under lock and key”.
Afterwards we explained, in layman’s terms, the outcome and to answer any questions Mr. B had. We strongly tried to reiterate that this was not a jail sentence, and that Mr. B was encouraged by everybody to access the community and do the activities that he enjoys. Mr. B and his wife remained living together and they could now turn to how they could improve the quality of their life. Mr. B had asked for a copy of the outcome and the Judge’s rationale for it. We assured Mr. B that we would send him a letter explaining everything.
This emotive case highlighted that, even if the decision does not go P’s way, it’s extremely important that they feel they have had their voice heard fully. The clear position is that P should be involved in proceedings as much as possible.
This case also demonstrated the importance of P’s legal representative supporting them through the process. The Judge was eager for a member of Mr. B’s legal team to be with him during the hearing as opposed to the matter being left to care staff. It was clear that Mr. B benefitted from having me there to guide and support him.
In hindsight, the best thing would have been for us to attend the care home on the first occasion to assist Mr. B with the hearing, which is one of the important things we have taken from this case.